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Can You Get a DWI in an Autonomous or Self-Driving Vehicle?

It was bound to happen. A driver of a self-driving vehicle has claimed he was not driving while intoxicated (or under the influence) because the car was driving itself. This week, the California Highway Patrol in San Francisco reported finding an individual passed out behind the wheel of a Tesla with a blood alcohol concentration of nearly twice the legal limit, which begs the question: Can you get a DWI in an autonomous vehicle?

DWI in an Autonomous Vehicle

Are You “Driving” an Autonomous Vehicle?

It seems like the first question should be whether a person is actually “driving” a self-driving or autonomous vehicle. Even though California uses the term “drive,” the reality is many DWI and DUI laws do not have the word “driving” in the description of the actual offense. Texas, for instance, focuses on whether or not the vehicle is being “operated” and not on whether the vehicle was being driven. Further complicating matters, “operation” is not defined in the statute. Over time, courts have handed down decisions that explain what operation means. While we’ve covered operation of a vehicle in detail previously, it basically means using the vehicle for its intended purpose (which has meant anything other than sitting in a running vehicle – and can be as little as putting your foot on the brake or the car being in neutral instead of park).

If merely putting your foot on the brake or having the car in drive has been enough to find that a person was operating a vehicle, then rest assured, courts are going to find owners of autonomous vehicles were operating their vehicles…at least for now.

How Can You Get a DWI in an Autonomous Vehicle?

To understand why you will be charged with a DWI in an autonomous vehicle, you have to understand the current state of autonomous technology available to consumers. There are five levels of autonomous driving, ignoring Level 0 which just means there is no automation. In 2018, most autonomous cars on the road are Level 2 vehicles. Here’s a look at the levels of automation.

levels of self driving vehicles[/vc_column_text][/vc_column][/vc_row][vc_row remove_padding=”no-padding-vc-row”][vc_column width=”1/2″][vc_column_text]

Level 0 | No Automation

At Level 0, the vehicle has no automation. Cars that require human input for all driving tasks fall into this category. Cars with standard cruise control also fall in this category.

Level 1 Automation | Driver Assistance Required

Vehicles equipped with adaptive cruise control fall into Level 1 Automation. Adaptive cruise control is when the vehicle maintains a specific distance from the vehicle in front of it. In other words, the vehicle can speed up and slow down based on external factors. At Level 1 the driver is still required to maintain control of the vehicle. Vehicles in Level 1 may also have features to keep the vehicle in the lane. Level 1 vehicles will not control steering and speed simultaneously.

Level 2 Automation | Partial Automation

If the vehicle is able to control both steering and speed simultaneously, it falls into Level 2 Automation. Examples of vehicles that have Level 2 Automation include Tesla, Volvo with Pilot Assist, Mercedes with Drive Pilot, and Cadillac’s with Super Cruise. Every manufacturer has their own safety requirements built in, such as a requirement to keep your eyes on the road or touch the steering wheel every minute. While Level 2 Automation may allow for drivers to relax considerably and turn a lot of functions over to the car, Level 2 Automation only works in certain areas and under certain conditions. The drive must be attentive and take over if the conditions exceed the vehicle’s abilities.

Level 3 Automation

At Level 3 Automation, the car takes over active monitoring of the environment. The Audi A8 with Audi AI Traffic Jam Pilot is reportedly the first vehicle to have achieved Level 3 Automation. Even at Level 3, the drive must be available to take over. Right now the Audi AI can take over completely at speeds under 37 mph when certain other conditions are met, but the human driver must take over if speeds reach 37 mph or if one of the other conditions are no longer met.

Level 4 Automation

A Level 4 Automation, the vehicle can drive completely under most conditions but will require driver attention when something about the environment changes – poor weather for example.

Level 5 Automation

Once we reach Level 5 Automation, the car does all the driving, all the time, regardless of condition.[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]Level 2 Automation: Cadillac Super Cruise

Level 2 Automation: Volvo Pilot Assist

Level 2 Automation: Mercedes Auto Pilot

Level 2 Automation: Tesla Autopilot

Level 3 Automation: Audi A8 Auto Pilot

Level 4 Automation Demo

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The Future of Autonomous Vehicles

The National Highway Traffic Safety Administration predicts by 2025 fully autonomous vehicles will be available at the consumer level. Once we have Level 5 Fully Autonomous vehicles on the roadways, the person sitting in the front left seat will no longer be the driver of the vehicle. With all driving functions under the control of the vehicle, every person in the vehicle will be a passenger. It will be at that point that autonomous vehicles can be used without fear of a DWI or DUI charge being filed.

The Truth about the San Francisco Tesla Driver

What we don’t know from California Highway Patrol’s tweet is how long the vehicle had been stopped, whether the Tesla was still on, and what other facts they have to prove the accused was driving the vehicle. Still, the circumstantial evidence of being in the driver’s seat of a vehicle stopped on the Bay Bridge is certainly sufficient for an arrest. Those facts may or may not be sufficient to prove the case beyond a reasonable doubt. Here is more on circumstantial DWI cases.

DWI cases are rarely as straightforward as they seem. Things that could complicate matters including whether or not there were open containers in the car, how long the car had been stopped, and when the accused became intoxicated, if he was intoxicated.[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]timeline for autonomous vehicle

 

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Fort Worth DWI Lawyer

Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

[/vc_column_text][/vc_column][/vc_row]

The post DWI in an Autonomous Vehicle? | Fort Worth DWI Lawyer (2018) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

Can You Get a DWI in a Self-Driving Vehicle?

It was bound to happen. A driver of a self-driving vehicle has claimed he was not driving while intoxicated (or under the influence) because the car was driving itself. The California Highway Patrol in San Francisco first reported finding an individual passed out behind the wheel of a Tesla with a BAC nearly twice the legal limit.

Are you “driving” a self-driving vehicle?

It seems like the first question should be whether a person is actually “driving” a self-driving or autonomous vehicle. The reality is most DWI and DUI laws are do not have the word “driving” in the description of the actual offense. Texas, for instance, focuses on whether or not the vehicle is being “operated” and not on whether the vehicle was being driven. Further complicating matters, “operation” is not defined in the statute. Over time courts have handed down decisions that explain what operation means. While we’ve covered operation of a vehicle in detail previously, it basically means using the vehicle for its intended purpose (which has meant anything besides sitting in a running vehicle – and can be as little as putting your foot on the brake, or the car being in neutral instead of park).

If merely putting your foot on the brake or having the car in drive have been enough to find that a person was operating a vehicle then rest assured courts are going to find owners of autonomous vehicles were operating their vehicles…at least for now.

How Can You Get a DWI in an Autonomous Vehicle?

To understand why you will be charged with a DWI in an autonomous vehicle, you have to understand the current state of autonomous technology that available to consumers. There are five levels of autonomous driving, ignoring “Level 0” which just means there is no automation. As of 2018, most autonomous cars on the road was are Level 2 vehicles. Here’s a look at the levels of automation.

levels of self driving vehicles

 

Level 0 | No Automation

The vehicle has no automation. Cars that require human input for all driving tasks fall into this category. Cars with standard cruise control also fall in this category.

Level 1 Automation | Driver Assistance Required

Vehicles equipped with adaptive cruise control fall into Level 1 Automation. Adaptive cruise control is the vehicle maintains a specific distance from the vehicle in front of it. In other words, the vehicle can speed up and slow down based on external factors. At Level 1 the driver is still required to maintain control of the vehicle. Vehicles in Level 1 may also have features to keep the vehicle in the lane. Level 1 vehicles will not control steering and speed simultaneously.

Level 2 Automation | Partial Automation

If the vehicle is able to control both steering and speed simultaneously, it falls into Level 2 Automation. Examples of vehicles that have Level 2 Automation include Tesla, Volvo with Pilot Assist, Mercedes with Drive Pilot, and Cadillac’s with Super Cruise. Every manufacturer has their own safety requirements built in, such as a requirement to keep your eyes on the road or touch the steering wheel every minute. While Level 2 Automation may allow for drivers to relax considerably and turn a lot of functions over to the car, Level 2 Automation only works in certain areas and under certain conditions. The drive must be attentive and take over if the conditions exceed the vehicle’s abilities.

Cadillac Super Cruise

Volvo Pilot Assist

Mercedes Auto Pilot

Tesla Autopilot

Level 3 Automation
At Level 3 Automation, the car takes over active monitoring of the environment. The Audi A8 with Audi AI Traffic Jam Pilot is reportedly the first vehicle to have achieved Level 3 Automation. Even at Level 3, the drive must be available to take over. Right now the Audi AI can take over completely at speeds under 37 mph when certain other conditions are met, but the human driver must take over if speeds reach 37 mph or if one of the other conditions are no longer met.

Level 4 Automation
A Level 4 Automation vehicle can control the vehicle completely under most conditions but will require driver attention when something about the environment changes – poor weather for example.

Level 5 Automation
Once we reach Level 5 Automation, the car does all the driving, all the time, regardless of condition.

https://www.washingtonpost.com/news/innovations/wp/2018/01/23/a-tesla-owners-excuse-for-his-dui-crash-the-car-was-driving/?utm_term=.0f6e536331ef

https://www.inverse.com/article/40391-tesla-driver-gets-dui

https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety#issue-road-self-driving

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Varghese Summersett

What is a 12.44 reduction and am I eligible for one?

If you have been charged with a crime in Texas, you may have been told to ask for a “12.44,” which refers to section 12.44 of the Texas Penal Code and allows state jail felonies to be punished as misdemeanors.

What is a state jail felony?

In 1993, the Texas legislature created a new category of offenses: state jail felonies. State jail felony offenses are generally low level property or drug crimes, which are punishable by confinement in a state jail facility for a period of six months to two years.

State jails are low-risk facilities that are operated at lower costs than state prisons, which house inmates convicted of first, second or third degree felonies. Unlike time served in county jail or prison, a state jail sentence must be served day-for-day. An inmate cannot earn good conduct time or parole in a state jail facility, which is why defendants charged with a state jail felony often seek a reduction in punishment through 12.44(a) or 12.44 (b.)

What is a 12.44(a)?

Sec. 12.44 REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(a)
A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

Under 12.44(a), a state jail felony can be punished as a misdemeanor and does not require the prosecution’s consent. The reduction does result in a felony conviction, but instead of doing six months to two years in a state jail facility, the defendant will instead face up to a year in county jail (where good time credit may be offered) or two years of community supervision (probation).

What is a 12.44(b)?

Sec. 12.44 REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(b)
At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

While 12.44(b) has the same two possible sentences as 12.44(a), it does not result in a felony conviction. A conviction under 12.44(b) is a misdemeanor conviction, which makes it very appealing to defendants. An offense that is prosecuted under 12.44(b) also cannot later be used to enhance other felony offenses. But unlike 12.44(a), an offense can only be prosecuted under 12.44(b) with the consent of the prosecution.

What’s the difference between 12.44(a) and 12.44(b) in Texas?

Both  12.44(a) and 12.44(b) mean misdemeanor punishment for a state jail felony, but (a) will result in a felony conviction, while (b) will result in a misdemeanor conviction. This chart breaks down a couple of other key differences:

What is a 12.44 reduction in Texas?

The post What is a 12.44 Reduction? 12.44(a) and 12.44(b) Explained. (2018) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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It is not uncommon to hear about drivers leaving the scene of accidents in Texas. Sometimes the accident is a minor fender-bender while others may involve a major crash resulting in serious injuries or even death.

Most drivers who flee the scene do so because they are scared of the consequences. Perhaps they had something to drink, were driving on a suspended license, or were speeding or texting. What they may not realize is that by failing to stop and render aid or failing to leave their contact or insurance information, they very likely will make their situation worse if they get caught. To be sure, waiting for a knock on the door by police is also a very frightening way to live.

In Texas, leaving the scene of an accident involving death, injury or property damage is a crime. Sometimes referred to as a hit and run, the consequences for failure to stop and render aid in Texas can be severe depending on the facts and circumstances of the wreck. Here’s a look at requirements for motorists involved in motor vehicle accidents, including the possible punishments for failure to stop and render aid or failure to give information.

Before You Go On: Where did the Accident Happen?

The laws described in this article only apply to accidents that take place on:

(1) a road owned and controlled by a water control and improvement district;

(2) a private access way or parking area provided for a client or patron by a business, other than a private residential property, or the property of a garage or parking lot for which a charge is made for storing or parking a motor vehicle; and

(3) a highway or other public place.

 

What is a Driver’s Duty when Involved in an Accident Involving Injury or Death?

accidents involving injury or death

In Texas, drivers are legally obligated to stop if they are involved in a wreck where a person was injured or died. Section 550.021 of the Texas Transportation Code specifically outlines what is required of drivers who are involved in a motor vehicle accident that results in injury or death of another person:

  1. immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
  2. immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;
  3. immediately determine whether a person is involved in the accident and whether that person requires aid; and
  4. remain at the scene of the accident until the operator complies with the requirements of Section 023, which include:
    1. giving your name and address, the registration number of the vehicle you were driving, the name and contact information of the insurance company;
    2. showing your driver’s license if requested and available;
    3. providing any injured person reasonable assistance, including transporting or making arrangements to transport the person to a doctor or hospital for treatment if it is apparent treatment is necessary or if they injured person requests transportation. 
    4. immediately “by the quickest means of communication” give notice of the accident to law enforcement.

What are the Penalties for Failure to Stop and Render Aid in Texas for Accidents Involving Injury or Death?

Failing to stop and render aid (FRSA) in accidents are taken very seriously in Texas and can result in significant jail time and hefty fines. As mentioned, the penalties for failing to stop in render aid depend on the severity of the accident.

  • Failure to stop and render aid for accidents involving death is a second-degree felony punishable by 2 to 20 years in prison and up to a $10,000 fine. The penalty for this crime was actually increased by lawmakers in 2013 in an effort to deter people who had been drinking from fleeing the scene of fatal accidents. The new legislation gave failure to stop and render aid involving death the same punitive weight as intoxication manslaughter. Both crimes are both punishable by up to 20 years in prison.
  • Failure to stop and render aid in accidents involving serious bodily injury is a third-degree felony, punishable by up to 10 years in prison and a $10,000 fine.
  • Failure to stop aid in a crash involving minor injury is punishable by up to five years in prison or confinement in the county jail for not more than a year and up to a $5,000 fine.

Serious Bodily Injury

In Texas, serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

What is a Driver’s Duty after Striking an Occupied Vehicle that Only Results in Vehicle Damage?

accidents involving another occupied vehicle

Every day in just about every city in the country, drivers are involved in accidents involving damage to occupied vehicles. Most likely, you or a loved one has been involved in an accident that resulted in vehicle damage. In Texas, if you are involved in an accident that results in damage to an occupied vehicle, you are required to:

  1. immediately stop the vehicle at the scene of the accident or as close as possible to the scene of the accident without obstructing traffic more than is necessary;
  2. immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;
  3. if the vehicle cannot be normally and safely driven shall immediately “by the quickest means of communication” give notice of the accident to law enforcement; and
  4. remain at the scene of the accident until the operator complies with the requirements of Section 023, which include:
    1. giving your name and address, the registration number of the vehicle you were driving, the name and contact information of the insurance company;
    2. showing your driver’s license if requested and available;
    3. providing any injured person reasonable assistance, including transporting or making arrangements to transport the person to a doctor or hospital for treatment if it is apparent treatment is necessary or if they injured person requests transportation.
    4. Additionally, if an accident occurs on main lane, ramp, shoulder, median, or adjacent area of a freeway in a metropolitan area and each vehicle involved can be normally and safely driven, each operator must move their vehicle as soon as possible to a designated accident investigation site, if available, a location on the frontage road, the nearest suitable cross street, or other suitable location to minimize interference with freeway traffic. 

What is the Penalty for Leaving the Scene of an Accident Resulting in Only Damage to Vehicle?

Leaving the scene after hitting and damaging an occupied vehicle is a misdemeanor in Texas. The penalties are not as severe as if someone was hurt, but it can still result in arrest and a criminal record. What level misdemeanor depends on the amount of damage.

  • If the damage to the vehicle is $200 or more, it is a Class B misdemeanor, punishable by up to six months in jail and up to a $2,000 fine.
  • If the damage to the vehicle is less than $200, it is a Class C misdemeanor, punishable by a maximum fine of $500.

What Should a Driver Do if they Strike an Unattended Vehicle in Texas?

It’s not uncommon for drivers to strike an unattended vehicle in a parking lot or come out of a store and notice a dent in their own vehicle. In Texas, subject to the limitations on where the accident took place listed at the top of this article, the law specifies that drivers must take responsibility for striking an unattended vehicle by immediately stopping and:

  • locating the owner of the unattended vehicle and giving that person their name and address of the driver; or
  • leave in a conspicuous place, or securely and visibly attach, a note giving their name and address and a statement of the circumstances of the collision.

Failing to provide this information is a Class C misdemeanor if the damage to all vehicles involved is less than $200. It’s a Class B misdemeanor if the damage to all vehicles involved is more than $200.

What about Hitting a Light Pole or Some Other Structure, Fixture or Highway Landscape?

Drivers who hit a light pole or guardrail or some other structure adjacent to a highway or landscape also have a duty under the law to report the accident by:

  1. taking reasonable steps to locate and notify the owner or person in charge of the property and give their name, address and registration number of the vehicle they were driving; and
  2. if requested and available, show their driver’s license to the person in charge of the property

 

Table: Punishment Ranges for Leaving the Scene of Accidents in Texas

Offense Penalty
Failure to Stop in Crash Involving Death of a Person Second-degree felony, punishable by 2 to 20 years in prison and  up to a $10,000 fine
Failure to Stop in Crash Involving Serious Bodily Injury Third-degree felony, punishable by 2 to 10 years in prison, up to a $10,000 fine
Failure to Stop in Crash Involving Minor Injury  

 

Imprisonment in the Texas Department of Criminal Justice for up to 5 years or confinement in the county jail for up to a year and up to a $5,000 fine.

Failure to Stop in Crash Resulting in More than $200 Damage to Occupied Vehicle  

 

 

Class B Misdemeanor, punishable by up to six months in jail and a maximum $2,000 fine.

 

 

 

Failure to Stop in Crash Resulting in Less than $200 to Occupied Vehicle Class C Misdemeanor, punishable by a maximum $500 fine
Failure to Give Information in Crash Resulting in More than $200 Damage to Unattended Vehicles Class B Misdemeanor, punishable by up to six months in jail and a maximum $2000 fine.
Failure to Give Information in Crash Resulting in Less than $200 Damage to Unattended Vehicles Class C Misdemeanor, punishable by a maximum $500 fine.
Failure to Give Information in Crash Resulting in More than $200 in Damages to Fixture, Landscaping or Structure Class B Misdemeanor, punishable by up to six months in jail and a maximum $2000 fine.
Failure to Give Information in Crash Resulting in Less than $200 in Damages to Fixture, Landscaping or Structure Class C Misdemeanor, punishable by a maximum $500 fine.

Examples of Defenses in Hit and Run Cases

There are a number of possible defenses that can be raised in hit and run cases, including but not limited to: 

  • You did not know an accident involving damage, injury or death occurred. In order to commit the offense of failure to stop and render aid or failure to give information, the driver must know that he or she was involved in an accident involving death, injury or damage. This may seem obvious, but it sometimes it is not. For example, a driver may have thought they struck a pothole or hit an animal. There are a myriad of scenarios to suggest that the driver did not know an accident occurred.
  • Location. The Transportation Code offenses listed above do not apply to:
    • a private access way or parking area to a private residential property; or
    • a garage or parking lot for which a charge is made for storing or parking a motor vehicle;
    • private property.

What Should I Do if I was Involved in a Hit-and-Run?

If you or a loved one left the scene of an accident in which someone may have been injured or died or involved property damage, it’s imperative that you contact a skilled defense attorney as soon as possible. The attorney can intervene between you, the police and insurance company and protect your rights and, possibly, your freedom and criminal record.

Contact Us

Hit and run allegations should not be taken lightly. If you are facing arrest or have been charged with failure to stop and render aid or a related offense, contact an experienced attorney at Varghese Summersett today for a complimentary strategy session. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

Call: (817) 203-2220

You can also contact us online:

The post Hit and Run in Texas: Consequences for Failure to Stop and Render Aid appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Sentencing in federal criminal cases – whether they are a result of a plea or a verdict – are set by the judge. Character letters for a judge requesting a lower sentence for a defendant are a mainstay of federal criminal cases. This is because most federal judges limit the number live witnesses, but will receive and review almost any number of support or character letters. 

The Goal of a Character Letter 

A character letter to a judge should establish your credibility, paint a full picture of the defendant and be respectful, among other things. Here’s nine tips for writing the most persuasive character letter possible. 

Tip 1 for a Character Letter for a Judge: Establish Credibility 

First, it should inform the judge how the author of the letter knows the defendant. Use the first paragraph to build credibility and answer the following questions: 

  1. How long have you known the person?
  2. How did you come to know the person – professionally, family, as a community member, etc? 
  3. If you know the person professionally, this is a good place to add your position or role that allowed you to get to know the defendant.

credibilityTip 2 for a Character Letter for a Judge: Avoid Landmines 

The biggest mistake a letter writer can make is to either detract from the defendant’s acceptance of responsibility or the jury’s verdict. Avoid phrases like “this is not like him” or “he pleaded guilty to get a better sentence and not because he was guilty.” Instead, this paragraph should include something along the lines of:

  1. I respect a jury has found _____ guilty of __________. I am writing to offer a more complete picture of who ________ is. 
  2. I know ___________ has pleaded guilty to ___________. I am writing to offer a glimpse of who _____ is, and that is someone who is far more than the offense he/she pled guilty to. 

You can even add something along the lines of, “I know the Federal Sentencing Guidelines, although not mandatory, provide the court with recommendations, and I realize how significant the possible sentence could be. I hope that you will find ____’s life and work to warrant a low sentence.”

avoid landlinesTip 3 for a Character Letter for a Judge: Tell a Story

You have established how you know the defendant and you’ve expressed respect for the court and the sentencing process. Now comes the most important part: What are you going to tell the judge that will stand out in his or her mind? How do you convey that the defendant is much more than a “defendant?” The best way to do this is to tell a story about the defendant. Give specific examples. For example, instead of saying the defendant is generous and kind-hearted, give the judge an example of an instance when the defendant showed these attributes. Instead of saying the defendant is the sole provider for this family, give detailed examples of how the defendant legitimately provided for his family in the past.

Tip 4 for a Character Letter for a Judge: Paint the Full Picture

Always keep in mind the picture you are painting for the judge and use the character letters strategically to paint that picture completely. For example, consider using one family member, one professional connection, and one from a church or civic organization as a bare minimum. 

paint a complete picture

Tip 5 for a Character Letter to a Judge: Always Include Verifiable Information

Remember the judge will have judicial clerks who will have time to verify any letters the judge wishes to have verified. Always include an address block with your letter, in the following format:

Name 

Mailing Address 

Phone Number 

Email Address

Providing the court with your contact information will make the letter easily verifiable, should the court wish to do so. 

verifiable informationTip 6 for a Character Letter to the Judge: Check with the Attorney 

Every court is going to have different filing requirements. All the letters should be sent to the defense attorney and not the court directly. Most courts will accept letters on 8.5 x 11 standard letter-sized paper. Most courts will accept copies of electronically delivered letters, but be sure to check with the attorney first. Remember that judges read hundreds of letters. The easier you make it for the judge to read, the most likely the judge will be able to focus on the message you are trying to convey. For most people, a typed letter is more legible than a handwritten one. You can always add a personal touch by delivering a letter with an ink signature on the letter – but remember some judges will only see the scanned electronic copy of the letter. Letters from young children are an exception – where the handwriting may actually make the letter more powerful – the judge will know the letter came directly from the child.

letters to the judgeTip 7 for a Character Letter to the Judge: How to Address the Judge 

You can address the judge to “The Honorable First Name Last Name” or “Judge First Name Last Name” or “Judge Last Name.” It is redundant to say “Honorable Judge” so use either “Judge” or “Honorable.” 

how to address the judgeTip 8 for a Character Letter to the Judge: Don’t Worry about the Reference Line or Court’s Address

While you can include identifiers like the Court’s address, the reference line, the case number etc, the reality is that all the letters should be delivered the defense attorney. The attorney, in turn, will make sure the letter get to the court and filed into the correct case. 

re line for letter to the judgeTip 9 for a Character Letter to the Judge: Know Your Ask

Most federal defendants are not going to be eligible for probation. Check with the defense attorney before making statements like “nothing good can be accomplished by sending ______ to prison.” Instead, end your letter with the same credibility you built at the beginning of the letter by making a reasonable request – whether that is asking for a minimum sentence or even a sentence under the recommended guideline range.

whats the right ask

Example Format for a Character Letter to the Judge

format for a character letter to the judge

 

Curious how our attorneys can help you reach your goals in a federal criminal case? Call us today at (817) 203-2220.

The post Character Letter for a Judge: 9 Essential Tips for an Effective Letter appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Another year is in the books and, true to form, it was marked by some crazy, humorous and downright unbelievable crime stories. From weed-gifting grandparents to inmates who broke back into jail, these schemes and snafus are sure to leave you shaking your head. Curated from around the country, here’s a list of some of the craziest crimes stories of 2017.

Inmates Break out of Jail, Burglarize Store, Sneak Back Behind Bars

A group of jail inmates in Lexington, Miss., are accused of breaking out of jail in September, burglarizing a nearby Dollar General store and then sneaking back into jail undetected. According to police, the inmates stole cigarettes, lighters and phones – items they planned to sell in the clink, according to Mississippi News Now. “You’re already in jail, but you want to break out and break back in?” Lexington Police Chief Robert Kirklin asked incredulously. “That is just something. I thought I heard it all.” The inmates were captured on the store’s surveillance video. Meanwhile, the jail is beefing up security measures.

Elderly Parents of Prosecutor Wanted to Give $300,000 Worth of Weed as Christmas Gifts

When Nebraska police stopped an elderly California couple on a cross-country trip to Vermont in December, officials found 60 pounds of marijuana in the bed of their pickup. The husband, 83, and his wife, 70, told authorities they intended to give the weed, valued at more than $300,000, as Christmas gifts to relatives in Vermont and Boston, according to the USA Today. Turns out, their son is a top criminal prosecutor in Chittenden County, Vermont. So far, he hasn’t commented about his parent’s holiday gift-giving plans.

drug dog

Creepy Clown Epidemic Causes Frenzy

Dozens of people were arrested across the country this spring after they dressed up as creepy clowns and started showing up in incongruous settings, such as woods, parks and schools. In some cases, school officials went into high alert and locked down schools, creating parental pandemonium. While some sightings were hoaxes and jokes, others led to actual arrests. Charges ranged from trespassing to making terroristic threats to disorderly conduct. Eventually, the creepy clown epidemic died down – at least for now. Apparently, the clown panic phenomena actually traces back decades.

crazy clowns

Suspect Had Money Coming Out the Wazoo

Police in Marion County, Florida, arrested a 26-year-old man this summer after finding drugs and cash in his car during a routine traffic stop. When they got to the jail, however, the money had mysteriously disappeared. The suspect told police they had already collected it, but astute jail officials noticed $20 coming from his rear. According to a cheeky Facebook Post from the Marion County Sheriff’s Office, detention officers then went through the “necessary but undesirable process,” of recovering $1090.00 from the suspect’s rectum. “For all of our wonderful cashiers in Marion County, we apologize for giving you this terrible mental image today,” police wrote in the post. “If you choose to use gloves during your daily duties, we will understand.”

Iowa Robber Thwarted by Bankers’ Hours

Iowa police said a would-be robber’s plans were thwarted when he showed up too early at the bank. Security footage captured a man wearing a gray hoodie, sunglasses and bandana try and enter two banks in West Des Moines on the morning of July 12. Problem was, the banks weren’t open yet. Employees in the parking lot “actually watched this guy yank on the doors,” Sgt. Tony Giampolo told the Des Moines Register.

Drug Suspect Drops Cocaine – in Court

Removing your hat in court is proper etiquette – unless you’ve got cocaine stashed in it. In November, a man was appearing before a Denver Judge on a felony drug charge when a folded paper containing cocaine fell out of his hat after he removed it. A law enforcement officer was in court and saw the whole thing, according to the Denver Post.  Officials picked up the cocaine and the man picked up two more charges: possession of a controlled substance and bond violation.

 

Robbery Suspects Arrested after Getaway Car Runs Out of Gas

Two suspected robbers were arrested in December after their getaway car ran out of gas and they became stranded on the side of the road. According to the Atlanta Journal Constitution, two men allegedly robbed a man of his wallet outside a grocery store in Gwinett County, Atlanta, and sped away in a red car. Less than 15 minutes later, an officer saw two men and a red car matching the description given by the robbery victim on the side of the road without gas. Items inside the car apparently linked them to the robbery.

Robbers Hold-Up Bar Full of Off-Duty Cops

Talk about being in the wrong place at the wrong time. Two men were arrested this summer in Baltimore after holding up a bar where a group of Baltimore County police officers were celebrating a longtime sergeant’s retirement. The masked me allegedly demanded cash from the register and took off. Off-duty officers attending the party gave chase and arrested the duo. The bar also happens to be across from a precinct station and many officer are regulars at the pub, the Baltimore Sun reported.

Used Clothing Store Gets Surprise Pot Donation

A suburban Minneapolis clothing store got a special donation in May when someone dropped off gently used children clothes along with 111 grams of marijuana. The Maplewood Police Department had fun with the mistake, posting pictures of the specially wrapped weed to their social media accounts along with a message: “Hey genius, Once Upon a Child thanks you for the clothing donation, but you forgot something in your pant pockets…sucks to be you….” In another post, the PD invited the donor to come down to the station to be reunited with your “perfectly measured baggies.” At last check, no one had come forward, reported the Argus Leader.

crazy marijuana bust

 

Drunken Man Arrested after Sending Texts to 911 about being Overserved

A Granbury, Texas, man was arrested in May after sending nearly three dozen texts to 911, reporting that a local bar overserved him. The man apparently texted the local sheriff’s department saying he wanted authorities to investigate the bar near his home for overserving and overcharging him, according to the Dallas Morning News. Officials warned him not to abuse 911, but he continued texting and was eventually arrested for abuse of 911. “Moral of the story, ‘Don’t text and drink alcohol,’” the sheriff’s department said. “Have a designated cellphone holder.”

Woman Arrested for DUI on a Horse

A Florida woman was arrested for DUI (the equivalent of Driving While Intoxicated in Texas) after a 911 caller reported she was “swerving on her horse” and “looking confused,” according to WFLA News Channel 8. While she claims that she was not slumped over and was only scratching her leg, a court has ruled she is not fit to care for her animal.

The post 11 Crime Stories from 2017 that are Hard to Believe appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Expunctions Texas

It goes without saying that any criminal arrest, charge or disposition, no matter how favorable, can adversely impact your future.  A criminal record may prevent you from getting into the college of your choice, applying for your dream job, or even closing a deal on a new house.  It is important to understand your options. Were you charged with a criminal offense that resulted in a dismissal, a completed pre-trial diversion program, a successfully disposed of deferred adjudication probation, or a reduction to a lesser offense?  If so, you may be eligible for an expunction or nondisclosure to ensure your criminal record is kept private. New laws passed in 2015 also entitle certain individuals who have been to jail or received probation.

Expunctions vs. Nondisclosures in Texas

An expunction order requires the destruction of all records of an offense, while a nondisclosure only prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specifically enumerated agencies.

If you are eligible for an expunction and follow all the proper procedures, an expunction must be granted in your case. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure.

How Long Does it Take to Get an Expunction or Nondisclosure Once You are Eligible?

Once a petition has been filed to have your record sealed or expunged, the court will address the petition. This may take anywhere from a couple of weeks to a couple of months. Occasionally, the judge will want to have a prove-up hearing which could further delay the process. Once an expunction or non-disclosure order is signed by a judge, you should expect for it to take four to six months before the records are completely sealed or expunged. Why the delay?  Texas DPS, the primary clearinghouse for criminal records, is at least four months behind in processing orders. These orders must also be processed by a number of private and public entities, which inevitably takes longer than you would expect.

Am I Eligible for an Expunction in Texas?

In Texas, Chapter 55 of the Code of Criminal Procedure allows for expunctions of certain criminal offenses. Categories of offenses that may be eligible for expunction include:

  • Most felonies and misdemeanors that were dismissed outright;
  • Cases where an individual was found not guilty at trial;
  • Class C offenses that were dismissed after successful completion of deferred adjudication community supervision;
  • Most misdemeanor and felony offenses where a person was arrested but never charged, if a required waiting period has passed;
  • Convictions, including offenses where the individual did time or was on straight probation, if the offense has been pardoned; and
  • Cases where the prosecutor recommends the case is expunged.

What if You are Found ‘Not Guilty’ on One of Multiple Charges?

Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. An opinion issued by the Court of Appeals in Dallas serves as a reminder that there are exceptions to this general premise in certain circumstances.

In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first of the two offenses was a misdemeanor theft charge. The second of the two offenses was an aggravated assault with a deadly weapon charge. The defendant pled guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.

The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted for at least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.

The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.

While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.

The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted for an offense is entitled to an expunction even if he was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.

This case highlights the need to contact an expunction attorney if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. Third, for practicing criminal defense attorneys, this case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.

Video: What’s the Difference Between an Expunction and Nondisclosure in Texas?

 

Can I Deny an Offense if it was Expunged in Texas?

Once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.

What is a Nondisclosure in Texas?

Government Code Subchapter F allows for individuals who have successfully completed deferred adjudication community supervision for Class B misdemeanors, Class A misdemeanors, or felony offenses to have their records sealed through an Order of Nondisclosure.

Am I eligible for an Order of Nondisclosure in Texas?

You may be eligible for an order of nondisclosure if you received a dismissal of your case after deferred adjudication of a Class A or Class B misdemeanor or a non-exempt felony offense. You cannot receive a nondisclosure if you picked up a new criminal offense (other than a ticket) after you received deferred adjudication on the offense you wish to have nondisclosed. You cannot receive a nondisclosure if you have ever been convicted of an exempted offense.

What Offenses are Exempted from Receiving Orders of Nondisclosure in Texas?

Can You Get a Nondisclosure after Straight Probation in Texas?

There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation. There is no finding of guilt or a conviction if you are placed on Deferred Adjudication and successfully complete the terms of your community supervision.

Until recently, a person could not get a nondisclosure after Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record – in other words, have their record sealed.

A nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a petition for nondisclosure must be prepared and filed with the state. The state then has an opportunity to request a hearing. The court will determine if granting the nondisclosure is in the best interest of justice, and if so grant an order prohibiting the disclosure of the criminal record.

What are the Requirements for Getting a Nondisclosure after Straight Probation?

  • The offense took place on or after September 1, 2015.
  • The offense was not a DWI or other intoxication-related offense or engaging in organized crime.
  • The defendant had not been convicted or placed on deferred adjudication for any offense other than a fine-only traffic violation after being sentenced on the misdemeanor for which the non-disclosure is being sought.
  • The defendant must have successfully completed probation.
  • The defendant cannot have been placed on convicted or placed on community supervision at any time for any offense other than a traffic offense that was punishable by a fine only.

What are the Waiting Periods?

There is a two-year waiting period for:

Can You Seal your Criminal Record after Going to Jail in Texas?

Can You Get a Nondisclosures of Misdemeanor Jail Sentences?

A nondisclosure in Texas is the legal mechanism used to seal your criminal record after going to jail so that no one other than law enforcement agencies or a state license agencies have access to the record. Until recently, a person could not get a nondisclosure if they served a jail time. However, recent changes in Texas law now allow for nondisclosures of criminal records in some instances where the individual completed a jail sentence.

Government Code Section 411.0735 now allows for nondisclosures of certain misdemeanor offenses for individuals who served their jail sentences. Intoxication-related offenses and engaging in organized crime cases are not eligible for nondisclosures under this section.

In order to get a nondisclosure under Section 411.0735, the person must have served the sentence and never been convicted of or placed on deferred adjudication for any other offense besides a fine-only traffic offense. In order to obtain a nondisclosure, a Petition for Nondisclosure must be filed with the court. Furthermore, two years must have passed from the date of release from jail, and the offense must have occurred on or after September 1, 2015. The petitioner must be able to show that granting the Order of Nondisclosure would be in the best interest of justice.

Qualifications for a Nondisclosure after Jail Time:

  • Offense date must be on or after September 1, 2015.
  • The offense must have been a misdemeanor.
  • The offense cannot have been an alcohol-related charge.
  • The offense cannot have been an engaging in organized crime charge.
  • Two years must have passed from the date of release from jail.
  • The person cannot have been previously convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense.
  • The person cannot have been convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period.
  • The person cannot have been convicted or placed on deferred adjudication at any time for:

In order to obtain a nondisclosure, a Petition for Nondisclosure is filed as  a civil proceeding. The State must be given notice of the petition at which time the State has 45 days to request a hearing. If a hearing is not requested, the court can grant the order without a hearing.

Can I Deny a Prior Offense if it was Nondisclosed in Texas?

Generally, if you have an offense that has been nondisclosed, you are no longer required to disclose it. However, there are agencies for which nondisclosure orders do not apply.

What Agencies have Access to a Nondisclosed Offense?

  • Law enforcement agencies
  • State Board of Educator Certification
  • School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
  • Texas State Board of Medical Examiners
  • Texas School for the Blind and Visually Impaired;
  • Texas Board of Law Examiners;
  • State Bar of Texas;
  • District court regarding a petition for name change
  • Texas School for the Deaf;
  • Department of Family and Protective Services;
  • Texas Youth Commission;
  • Department of Assistive and Rehabilitative Services;
  • Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
  • Texas Private Security Board;
  • Municipal or volunteer fire department;
  • Board of Nurse Examiners;
  • Safehouse providing shelter to children in harmful situations
  • Public or nonprofit hospital or hospital district;
  • Texas Juvenile Probation Commission;
  • Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
  • Texas State Board of Public Accountancy;
  • Texas Department of Licensing and Regulation;
  • Health and Human Services Commission; and
  • Department of Aging and Disability Services.

What are the Waiting Periods for Filing Petitions of Nondisclosure?

Was My Class C Offense Deferred or Was it a Conviction?

If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you were charged in Texas and are interested in finding out if a Class C offense you paid for can be expunged, contact Varghese Summersett PLLC.

In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $50-500 but your case was ultimately disposed of as a Class C Theft under $50, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $50-500. An expunction would remove the arrest from your record completely.

Can I Get a Record of a DWI Sealed?

If Texas, if you pled guilty or “no contest” to a DWI charge, the law only allows for two forms of punishment: jail time or straight probation.  A recent change in law allows for the nondisclosure of first-time DWIs.

Can you get DWI Expunctions in Texas?

As of September 1, 2017, Texas law allows for the retroactive nondisclosure, but not expunction, of first-time DWI cases.

My Case was Dismissed. Do I have a Criminal Record?

A common myth is that once your case is dismissed, it is no longer on your record. A criminal background check will still show your arrest. These records may affect a person’s ability to get a job, secure loans, or find a place to live. Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party data services like publicdata.com. If your case has been dismissed for any reason, contact Varghese Summersett PLLC to see if your criminal record can be sealed.

I Received Deferred Adjudication. Do I have a Criminal Record?

Even if you successfully complete deferred adjudication community supervision and your case was dismissed (referred to as a DM13), it will still appear on your criminal record.  It is important that the court enter a finding of “Not Guilty” on the greater charge.  Then, you will need to call Varghese Summersett PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.

Can I Get an Expunction if I have signed a Waiver of Expunction?

Individuals sometimes sign waivers of expunctions at the time of the plea. If you have signed a waiver of expunction, the road to getting an expunction becomes much more difficult. Still, there are often avenues for expunctions to be granted. It is important that you call an expunction attorney who is familiar with the expunction laws in Texas and the procedures for filing an expunction even in cases where a waiver of expunction was signed.

Contact Us

Varghese Summersett PLLC provides expunctions and nondisclosures for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County. Call 817-203-2220 today for a complimentary strategy session. You can also contact us online.

The post Expunctions Texas | Nondisclosures | Sealing Criminal Records (2018) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

Expunctions Texas

It goes without saying that any criminal arrest, charge or disposition, no matter how favorable, can adversely impact your future.  A criminal record may prevent you from getting into the college of your choice, applying for your dream job, or even closing a deal on a new house.  It is important to understand your options. Were you charged with a criminal offense that resulted in a dismissal, a completed pre-trial diversion program, a successfully disposed of deferred adjudication probation, or a reduction to a lesser offense?  If so, you may be eligible for an expunction or nondisclosure to ensure your criminal record is kept private. New laws passed in 2015 also entitle certain individuals who have been to jail or received probation.

Expunctions Versus Nondisclosures in Texas

An expunction order requires the destruction of all records of an offense, while a nondisclosure only prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specifically enumerated agencies.

If you are eligible for an expunction and follow all the proper procedures, an expunction must be granted in your case. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure.

How Long Does it Take to Get an Expunction or Nondisclosure Once You are Eligible?

Once a petition has been filed to have your record sealed or expunged, the court will address the petition. This may take anywhere from a couple of weeks to a couple of months. Occasionally, the judge will want to have a prove-up hearing which could further delay the process. Once an expunction or non-disclosure order is signed by a judge, you should expect for it to take four to six months before the records are completely sealed or expunged. Why the delay?  Texas DPS, the primary clearinghouse for criminal records, is at least four months behind in processing orders they receive. These orders must be processed by a number of private and public entities, which inevitably takes longer than you would expect.

Am I eligible for an Expunction in Texas?

In Texas, Chapter 55 of the Code of Criminal Procedure allows for expunctions of certain criminal offenses. Categories of offenses that may be eligible for expunction include:

  • Most felonies and misdemeanors that were dismissed outright;
  • Cases where an individual was found not guilty at trial;
  • Class C offenses that were dismissed after successful completion of deferred adjudication community supervision;
  • Most misdemeanor and felony offenses where a person was arrested but never charged, if a required waiting period has passed;
  • Convictions, including offenses where the individual did time or was on straight probation, if the offense has been pardoned; and
  • Cases where the prosecutor recommends the case is expunged.

What if You are Found ‘Not Guilty’ on One of Multiple Charges?

Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. An opinion issued by the Court of Appeals in Dallas serves as a reminder that there are exceptions to this general premise in certain circumstances.

In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first of the two offenses was a misdemeanor theft charge. The second of the two offenses was an aggravated assault with a deadly weapon charge. The defendant pled guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.

The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted for at least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.

The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.

While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.

The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted for an offense is entitled to an expunction even if he was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.

This case highlights the need to contact an expunction attorney if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. Third, for practicing criminal defense attorneys, this case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.

Video: What’s the Difference Between an Expunction and Nondisclosure in Texas?

 

Expunctions and Nondisclosures in Texas

Can I Deny an Offense if it was Expunged in Texas?

Once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.

What is a Nondisclosure in Texas?

Government Code Subchapter F allows for individuals who have successfully completed deferred adjudication community supervision for Class B misdemeanors, Class A misdemeanors, or felony offenses to have their records sealed through an Order of Nondisclosure.

Am I eligible for an Order of Nondisclosure in Texas?

You may be eligible for an order of nondisclosure if you received a dismissal of your case after deferred adjudication of a Class A or Class B misdemeanor or a non-exempt felony offense. You cannot receive a nondisclosure if you picked up a new criminal offense (other than a ticket) after you received deferred adjudication on the offense you wish to have nondisclosed. You cannot receive a nondisclosure if you have ever been convicted of an exempted offense.

Offenses Exempted from Receiving Orders of Nondisclosure In Texas

Can You Get a Nondisclosure after Straight Probation in Texas?

There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation while there is no finding of guilt or a conviction if you are placed on Deferred Adjudication as successfully complete the terms of your Community Supervision.

Until recently, a person could not get a nondisclosure after Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record – in other words, have their record sealed.

A nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a Petition for Nondisclosure must be prepared and filed with the State. The State then has an opportunity to request a hearing. The court will determine if granting the nondisclosure is in the best interest of justice, and if so grant an order prohibiting the disclosure of the criminal record.

Requirements for Getting a Nondisclosure after Straight Probation:

  • The offense took place on or after September 1, 2015.
  • The offense was not a DWI or other intoxication-related offense or engaging in organized crime.
  • The defendant had not been convicted or placed on deferred adjudication for any offense other than a fine-only traffic violation after being sentenced on the misdemeanor for which the non-disclosure is being sought.
  • The defendant must have successfully completed probation.
  • The defendant cannot have been placed on convicted or placed on community supervision at any time for any offense other than a traffic offense that was punishable by a fine only.

Waiting Periods

There is a two-year waiting period for:

Can You Seal your Criminal Record after Going to Jail in Texas?

Nondisclosures of Misdemeanor Jail Sentences

A nondisclosure in Texas is the legal mechanism used to seal your criminal record after going to jail so that no one other than law enforcement agencies or a state license agencies have access to the record. Until recently, a person could not get a nondisclosure if they served a jail time. However, recent changes in Texas law now allow for nondisclosures of criminal records in some instances where the individual completed a jail sentence.

Government Code Section 411.0735 now allows for nondisclosures of certain misdemeanor offenses for individuals who served their jail sentences. Intoxication-related offenses and engaging in organized crime cases are not eligible for nondisclosures under this section.

In order to get a nondisclosure under Section 411.0735, the person must have served the sentence and never been convicted of or placed on deferred adjudication for any other offense besides a fine-only traffic offense. In order to obtain a nondisclosure, a Petition for Nondisclosure must be filed with the court. Furthermore, two years must have passed from the date of release from jail, and the offense must have occurred on or after September 1, 2015. The petitioner must be able to show that granting the Order of Nondisclosure would be in the best interest of justice.

Qualifications for a Nondisclosure after Jail Time

  • Offense date must be on or after September 1, 2015.
  • The offense must have been a misdemeanor.
  • The offense cannot have been an alcohol-related charge.
  • The offense cannot have been an engaging in organized crime charge.
  • Two years must have passed from the date of release from jail.
  • The person cannot have been previously convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense.
  • The person cannot have been convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period.
  • The person cannot have been convicted or placed on deferred adjudication at any time for:

In order to obtain a nondisclosure, a Petition for Nondisclosure is filed as  a civil proceeding. The State must be given notice of the petition at which time the State has 45 days to request a hearing. If a hearing is not requested, the court can grant the order without a hearing.

Can I Deny a Prior Offense if it was Nondisclosed in Texas?

Generally, if you have an offense that has been nondisclosed, you are no longer required to disclose it. However, there are agencies for which nondisclosure orders do not apply.

What Agencies have Access to a Nondisclosed Offense?

  • Law enforcement agencies
  • State Board of Educator Certification
  • School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
  • Texas State Board of Medical Examiners
  • Texas School for the Blind and Visually Impaired;
  • Texas Board of Law Examiners;
  • State Bar of Texas;
  • District court regarding a petition for name change
  • Texas School for the Deaf;
  • Department of Family and Protective Services;
  • Texas Youth Commission;
  • Department of Assistive and Rehabilitative Services;
  • Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
  • Texas Private Security Board;
  • Municipal or volunteer fire department;
  • Board of Nurse Examiners;
  • Safehouse providing shelter to children in harmful situations
  • Public or nonprofit hospital or hospital district;
  • Texas Juvenile Probation Commission;
  • Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
  • Texas State Board of Public Accountancy;
  • Texas Department of Licensing and Regulation;
  • Health and Human Services Commission; and
  • Department of Aging and Disability Services.

Waiting Periods for Filing Petitions of Nondisclosure

Was My Class C Offense Deferred or Was it a Conviction?

If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you were charged in Texas and are interested in finding out if a Class C offense you paid for can be expunged, contact Varghese Summersett PLLC.

In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $50-500 but your case was ultimately disposed of as a Class C Theft under $50, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $50-500. An expunction would remove the arrest from your record completely.

Can I Get a Record of a DWI Sealed?

If Texas, if you pled guilty or “no contest” to a DWI charge, the law only allows for two forms of punishment: jail time or straight probation.  A recent change in law allows for the nondisclosure of first-time DWIs.

DWI Expunctions in Texas

As of September 1, 2017, Texas law allows for the retroactive nondisclosure, but not expunction, of first-time DWI cases.

My Case was Dismissed. Do I have a Criminal Record?

A common myth is that once your case is dismissed, it is no longer on your record. A criminal background check will still show your arrest. These records may affect a person’s ability to get a job, secure loans, or find a place to live. Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party data services like publicdata.com. If your case has been dismissed for any reason, contact Varghese Summersett PLLC to see if your criminal record can be sealed.

I Received Deferred Adjudication. Do I have a criminal record?

Even if you successfully complete deferred adjudication community supervision and your case was dismissed (referred to as a DM13), it will still appear on your criminal record.  It is important that the court enter a finding of “Not Guilty” on the greater charge.  Then, you will need to call Varghese Summersett PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.

Can I Get an Expunction if I Have signed a Waiver of Expunction?

Individuals sometimes sign waivers of expunctions at the time of the plea. If you have signed a waiver of expunction, the road to getting an expunction becomes much more difficult. Still, there are often avenues for expunctions to be granted. It is important that you call an expunction attorney who is familiar with the expunction laws in Texas and the procedures for filing an expunction even in cases where a waiver of expunction was signed. Varghese Summersett PLLC provides expunctions for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County. Call 817-203-2220 today for a complimentary strategy session. You can also contact us online.

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The Court of Criminal Appeals handed down a decision this week that revisits the significance of furtive gestures in establishing probable cause. In Marcopoulos v. State, the Court ruled that quickly leaving a bar that was known drug establishment coupled with furtive movements once the officer initiated a traffic stop was not sufficient to establish probable cause to search the vehicle.

The Background

While surveilling a bar that was well-known narcotics spot, an undercover officer witnessed Andreas Marcopoulos enter the bar for less than five minutes and leave. Finding this suspicious, the undercover officer followed him and radioed for uniformed officers to follow Marcopoulos.

Officers observed Marcopoulos make “furtive gestures” around the center console of the vehicle and the uniformed officer initiated a traffic stop after Marcopoulos failed to signal a lane change. Marcopoulos was arrested for the traffic violation. His vehicle was searched based on probable cause stemming from the officers’ observations. Two baggies of cocaine were found near the center console. Officers found a third cocaine “baggie” in Marcopoulos’ wallet.

Automobile Exception to Search Warrants

Officers may search a vehicle based on the “automobile exception,” which in relevant part, provides that an officer needs probable cause to believe a vehicle contains contraband to conduct a warrantless stop. “Probable cause” is met when there is a “fair probability” of finding contraband or evidence during a search. In determining whether the probability is fair, courts consider factual and practical considerations of everyday life and take into account the totality of all surrounding circumstances.

Challenging the Search of the Vehicle

Marcopoulos filed a motion to suppress the baggies as evidence arguing they were derived from an improper search. The trial court denied the motion and Marcopoulos appealed. The intermediate appellate court upheld the search under the “automobile exception” to the Fourth Amendment warrant requirement, reasoning that Marcopoulos’ “repeated history of going to a place . . . known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him” were sufficient to create probable cause to search the vehicle.

Court of Criminal Appeals on Furtive Gestures

On December 20, 2017, the Texas Court of Criminal Appeals found the combination of Marcopoulos’ “furtive gestures” paired with his short amount of time spent at a bar known for narcotics activity, was not sufficient to create probable cause to search the vehicle. The Court held “furtive gestures” must be coupled with “suspicious circumstances” that link directly to criminal activity in order to establish probable cause. Neither officer witnessed Marcopoulos engage in a drug deal, possess drugs or paraphernalia, or pursue the purchase of drugs while visiting the bar. Additionally, neither officer could link Marcopoulos’ “furtive gestures” to drugs or paraphernalia before conducting the search. No baggies were seen until the search was conducted and neither officer noted additional indicators or evidence that would directly link Marcopoulos’ movements to drug possession. Further, his furtive gestures were not a response to being pulled over, but merely a response to police presence. Therefore, Marcopoulos’ furtive gestures could not be directly and linked to drug possession before officers conducted a search, and any evidence obtained from the improper search should have been suppressed by the trial court.

 

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Benson Varghese

Benson Varghese, founder and managing partner of the law firm Varghese Summersett PLLC, has been named a 2017 Minority Leader in Business by the Fort Worth Business Press.

Varghese was recognized along with other North Texas business leaders on Dec. 14, during a luncheon at the Fort Worth Club.

“I am honored to have been recognized as a top business leader by the Fort Worth Business Press,” Varghese said.   “The award recognizes that diverse backgrounds can enhance the strength of, and innovation within, our business community.”

A former prosecutor, Varghese started his criminal defense firm three years ago with two attorneys in a small office. Today, his firm is the largest criminal defense firm in Tarrant County. The firm’s 10 attorneys and support staff take up half of the 16th floor in the One City Place building in downtown Fort Worth.

“Benson built his business on the principles of hard work, dedication, education and integrity,” said firm partner Christy Jack. “His word is his bond. At age 35, he truly embodies the entrepreneurial spirit.”

A native of India, Varghese came to the United States when he was a year old after his mother accepted a job as a nurse in Dallas. He later returned to India as a young teen to manage the family’s rubber plantation, a difficult life that taught him the value of hard work and perseverance. Once he turned 18, he sought citizenship in the United States to return to his immediate family, pursue higher education, and live the “American Dream.” 

After becoming a naturalized citizen and returning to the U.S., Varghese pursued and obtained his GED.  He went on to graduate from Southern Methodist University and then attended law school at Texas Tech University to fulfill his goal of becoming an attorney. Upon graduation, he went to work for the Tarrant County District Attorney’s Office, where he served as a prosecutor for four years.

In March 2014, at the age of 32, Varghese left his job as a prosecutor to launch his own criminal defense firm and acquired an all-star team of attorneys. To date, Varghese Summersett PLLC has helped more than 1000 clients, has an A+ business rating with the Better Business Bureau and has 130 five-star reviews on Google – more stellar reviews than any other criminal defense firm in Texas.

Varghese is a Fellow of the Texas Bar Foundation – only one-third of 1 percent of Texas lawyers are selected each year – and a member of the College of the State Bar of Texas, a distinction held by fewer than 10 percent of all licensed attorneys in Texas. He also was recently elected Vice President of the Tarrant County Criminal Defense Lawyers Association, among many other notable accomplishments.

“We all benefit when every person, regardless of race, ethnicity, background, or socioeconomic status, is given the opportunity to pursue their dreams,” said firm partner, Anna Summersett. “Benson has done just that, ambitiously.  The lessons he learned from his parents, his culture, and other minority members along the way make him a well-rounded, intelligent leader for our diverse firm.”


Learn more about Benson Varghese on the firm’s website, www.versustexas.com.